Gov. Greg Gianforte is pushing for revisions to a proposed ban on the social media platform TikTok passed by the Legislature this month, suggesting the bill’s backers amend its provisions to apply to all social media platforms that allow users’ personal data to be provided to nations classified as “foreign adversaries.”
The change, Gianforte’s office has argued, would make the ban easier to defend from court challenges. However, the governor’s staff has also told the ban’s supporters that he is “prepared to sign the bill as is.”
The TikTok ban bill, Senate Bill 419, secured formal approval from the Legislature April 14, but still needs to be signed by the governor before it can become law. National news outlets have reported the bill would make Montana the first state in the nation to place a total ban on the platform, and both TikTok and free speech groups have promised litigation if the measure is adopted.
In an email exchange this week between Attorney General Austin Knudsen, bill sponsor Sen. Shelly Vance, R-Belgrade, and others, Gianforte attorney Anita Milanovich provided a proposed amendment for the bill and indicated the governor would prefer to see its language adjusted before he gives it his blessing.
“While he is prepared to sign the bill as is, he believes this language would improve the bill by broadening its privacy protections as against all foreign adversaries, not just TikTok. It also addresses technical and legal concerns with the bill,” Milanovich wrote April 25.
She added that the governor would send the amendment back to the Legislature only if it had consensus support from the group, which also included Speaker of the House Matt Regier, R-Kalispell, Senate President Jason Ellsworth, R-Hamilton, and Rep. Brandon Ler, R-Savage, who served as the measure’s chief proponent on the House floor. The exchange was provided to Montana Free Press via a public records request.
Knudsen and Vance both wrote back to Gianforte’s office that they prefer the bill in its current form.
“At this point, my preference is to leave the bill as is. DOJ is prepared to defend it,” Knudsen wrote, using the acronym for the Montana Department of Justice.
A Knudsen spokesperson didn’t immediately respond to a request for comment on the governor’s proposal late Thursday afternoon.
Gianforte’s amendment is nearly identical to one proposed by Rep. Katie Sullivan, D-Missoula, as the bill was debated on the House floor earlier this month. That amendment failed narrowly on a 48-51 vote after supporters of the ban pushed back on it.
“This amendment completely strips the whole intent of the bill and it makes the bill unworkable,” Ler said during the floor debate.
In its current form, the ban bill would bar TikTok’s Chinese parent company, ByteDance, from allowing “the operation of tiktok by the company or users” inside Montana’s “territorial jurisdiction” as long as the platform is owned by a company based in China or another country designated a “foreign adversary” by the federal government.
The bill would also make it illegal for companies like Apple and Google to let their users download the platform’s app from their respective app stores. It does not include provisions that would allow the state to prosecute individual Montanans for circumventing the ban, which would take effect at the beginning of 2024.
Knudsen and other TikTok ban proponents have argued that the platform represents a major privacy risk for its Montana users and poses a threat to national security, in addition to inspiring teenagers to participate in dangerous viral challenges.
Opponents have argued that the bill would unfairly single out a specific social media platform and hurt Montanans who use the platform to market their businesses. Free-speech advocacy organizations including the American Civil Liberties Union have argued that the bill violates the First Amendment of the U.S. Constitution.
When the bill was debated on the House Floor April 13, one opponent, Missoula Democratic Rep. Zooey Zephyr, argued that TikTok users would likely be able to work around the ban by using technology that makes them appear to be accessing the internet from outside Montana.
The social media company also criticized the ban in a statement after it passed the Legislature earlier this month.
“The bill’s champions have admitted that they have no feasible plan for operationalizing this attempt to censor American voices and that the bill’s constitutionality will be decided by the courts,” TikTok spokesperson Brooke Oberwetter wrote in an email. “We will continue to fight for TikTok users and creators in Montana whose livelihoods and First Amendment rights are threatened by this egregious government overreach.”
The bill passed the state Senate on a 30-20 vote March 2 and the House on a 54-43 vote April 14. Its next substantive stop in the legislative process is the governor’s desk, but the bill, which is waiting on a routine signature from Speaker of the House Regier, hasn’t yet been formally transmitted to Gianforte’s office.
Legislative attorney Todd Everts said Thursday that the governor’s office had provided him with the text of an anticipated amendatory veto for the bill.
Amendatory vetos allow the governor to return a bill to the Legislature with suggested changes instead of killing a bill with a full-fledged veto. Gianforte will no longer have the amendatory veto option after the Legislature adjourns next week.
The governor’s proposed text would strike the bill’s explicit references to “TikTok” and “China,” broadening the bill so the ban would apply to any social media application that collects personal information and allows that data “to be provided to a foreign adversary or person or entity located within a country designated as a foreign adversary.”
In an email Thursday, Gianforte spokesperson Travis Hall said the governor’s proposed amendment is intended to provide broader protection for Montanans’ privacy. Hall also pointed to news reports indicating that ByteDance has launched a new social media platform, Lemon8, as a possible effort to circumvent bans.
The governor previously issued a directive banning the use of TikTok on state-owned devices and networks in December, saying use of the platform on state devices “poses a significant risk to the security of our state and Montanans’ sensitive data.” The Montana University system also blocked access to TikTok on campus networks in January.
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